Innocent Until Proven Guilty: How criminal justice systems treat the accused before they go to trial

November 11, 2022

Still from
Gideon's Army
Amos Miller

The presumption of innocence until proven guilty underpins modern judicial practice. But for millions of accused around the globe, the presumption of innocence isn’t enough to prevent significant financial, emotional, and social injustices while they await their time in court. 

Three films in our Caught in the Criminal Justice campaign interact with the messy reality of life behind bars, before conviction. The Remandee, from filmmakers Jakob Jakobsen and Alexander Lind, explores the injustice of the Zambian prison system. The film follows the story of a prisoner, William, waiting for his time in court after being charged with robbery and murder. William has been in jail for over two years but has yet to be convicted or even tried for his potential crimes. While William sits in prison, his wife has remarried. The film explores the social and emotional turmoil of unconvicted incarceration. Not only is William’s life put on hold, but he has to watch as his wife and daughter struggle to come to terms with his absence and attempt to move on with their lives. 

The Zambian correctional system is one of the most overcrowded prison systems in the world. In 2021, Zambia had over 23,000 prisoners housed in facilities which were designed to house a mere 10,500; well over double capacity. The severe overcrowding is complicated by a lack of clean water, soap, and other hygiene supplies meaning communicable diseases run rampant. Meanwhile, prisoners are oftentimes dependent on friends and relatives outside of prison to supply them with basic materials like food, clothing, and medical supplies. Much of the crowding in Zambian prisons is due to the issue of pretrial or remand prisoners. These are prisoners who have been charged with but not yet convicted of a crime. In 2019, over 17% of Zambian prisons were filled with remand prisoners like William. As recently as 2007, the number of pretrial/remand prisoners reached nearly 55% of the total prison population. Those awaiting trial in Zambia often wait for so long because lower court judges are not allowed to rule on a number of criminal charges. This means that prisoners like William are left crammed into overcrowded jails, without adequate supplies while they wait for their case to make its way onto the docket of a higher level judge.

Waiting in jail isn’t the only way in which a justice system can let down the accused. In the United States, the bail system allows for the wealthy and well connected to await trial at home while those with less money are left to either take out potentially ruinous loans or remain in jail like in Zambia. Jailed in America by Roger Ross Williams and Gideon’s Army from Dawn Porter both explore the American justice system, with a particular focus on the perpetuated injustices of poverty and the pretrial system. Gideon’s Army follows two young Public Defenders who commit themselves to defending those who can’t otherwise afford legal representation. The film highlights the role in which the bail bond system in America disproportionately affects low-income defendants. 

Bail is a system for making sure that those accused of a crime show up to court. In America, this means paying a certain amount of money in order to stay out of jail before trial. The system started when members of the community would vouch for someone accused of a crime and make sure that that person showed up for their trial. However, over time the practice evolved from a social assurance to a financial assurance. With many defendants unable to pay for bail themselves, they often have to resort to predatory bail bondsmen, or worse, sit in jail until their trial. The bail bond industry is big business, estimated at over $2 billion per year. Bondsmen will pay the accused’s bail, but for a price. America and the Philippines are the only two countries in the world where the practice of commercial bail posting is still legal. The practice further compounds the economic troubles for defendants as most bondsmen charge a fee of 10% of the total bail for their services. Meaning the choice can still come down to sitting in jail, or going further into debt.

If a defendant does choose to sit in jail as they await trial, their legal outcomes are often much more negative. This is primarily due to those not posting bail having a significantly greater likelihood of taking a plea deal, essentially admitting guilt in exchange for lighter punishment. Even the act of taking a plea deal while in jail affects outcomes on prison sentences. Those who take a plea deal without posting bond receive harsher sentences than those who pay bail and take a plea deal

Whether it's waiting in jail for months or even years just to have your case adjudicated, or a system which distributes pretrial justice based on wealth, the idea that someone is innocent until proven guilty doesn’t always appear as such in practice. Are there better ways for the accused to be handled in our criminal justice systems?

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